A new appeal decision from FSCO on “what is an accident” adds nothing new to the discussion, but highlights the difficulties as of late in this area.
On February 2, 2013, while driving his van, Mr. S. had a heart attack and lost consciousness, causing him to lose control of his vehicle. After striking two guardrails, the van ended up angled over a ditch. The damage to the van and its internal layout prevented a CPR-trained bystander from immediately treating Mr. S. Mr. S claimed that the delayed treatment caused severe neurological impairments.
At first instance, Arbitrator Arbus found that the heart attack was an intervening event and that any later events – like the delayed treatment – were irrelevant to his determination as to whether there had been an “accident”. He ruled this incident was not an accident as defined in s. 3(1) of the 2010 SABS. With respect to the “dominant feature” test, the Arbitrator found that the dominant feature was the heart attack, which “was the triggering event. The heart attack caused the crash which led to the vehicle ending up in the ditch.” Accordingly, the Arbitrator found that Mr. S had not been in an accident.
Director’s Delegate Evans overturned that decision, finding several errors by the arbitrator:
1. The Arbitrator erred by failing to take into account the time delay caused by the crash itself, the resultant damage to the van, and the attempts to extricate Mr. S from the van. The use or operation of a motor vehicle caused the delay in treatment, causing the impairment.
2. The Arbitrator appears to be suggesting that whether an incident is an accident depends on how the majority of the impairments arose. This is an error, since any impairment directly caused by the use or operation of the vehicle is enough to make the incident an accident, at least with respect to that impairment.
3. The Arbitrator also erred in focusing on the heart attack as the “triggering event” that “caused the crash.” Causation in that sense is irrelevant in the no-fault system. What is relevant is what caused the impairment.
The real question is, “Would Mr. S have suffered impairments he did, but for the use or operation of an automobile?” Citing Downer v. The Personal Insurance Company, Evans believes that this question should have been answered in the affirmative, at least for some of the impairments. Unfortunately he does not identify which impairments. In fact, there is no discussion at all about if it was even possible to differentiate impairments that were caused by the initial heart attack, versus the impairments that were a result of the delay in treatment (and thus a direct result of the accident). If this was not confusing enough, he goes on to say:
Mr. S suffered a heart attack, which was one direct cause of impairment. However, he continued to use the vehicle, which increased the level of his impairment, so the use of the motor vehicle was another direct cause of impairment, as found by the Arbitrator. Mr. S therefore meets the test for an “accident” under the SABS, and the Arbitrator erred in finding otherwise.
Director’s Delegate Evans cites Monks in finding there can be more than one direct cause of an impairment:
There is no indication in the SABS of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries caused by an unrelated accident. The SABS simply states, in clear and unambiguous language, that an insurer “shall pay an insured person who sustains an impairment as a result of an accident”
I am not sure that this proves his point on “multiple direct causes”. Only paragraphs before, the issue of different causes for different impairments was identified. The court of appeal in Downer makes it clear that there can, and should be some analysis of which impairments were the result of an “accident” and which impairments were not. Here, the impairments caused by the heart attack are lumped into the impairments caused by the accident, without any analysis. Director’s Delegate Evans states:
…pursuant to Monks, there is no apportionment between the two direct causes, so Mr. S is entitled to all benefits related to the impairment.
My reading of Monks is that the impairments that are caused or contributed to by an “accident” are those that create entitlement to SABS. Here, what is “the impairment” that would not have occurred, but for the accident? We are left to guess. In the end, Mr. S seems to have been fortunate to have suffered a heart attack in a car; if he had suffered it at home, lost consciousness and his treatment been delayed, he would not have been entitled to SABS.
One thing is clear: even accomplished litigators can make basic mistakes in this area, and without rigorous judicial reasoning, the results will be confused, if not just wrong.